It is hardly possible to conceive that any solicitor of this court should have been so ignorant of its practice, as not to know that the complainant could proceed, upon the personal service of a subpoena, without the necessity of serving notices of the subsequent proceedings in the cause upon the defendant, who had neglected to appear. I can therefore only account for the delay of the defendant’s solicitor to give notice of his retainer, and to enter the defendant’s apearance, upon the supposition that ho believed the bill was in fact what he calls it in his affidavit, a bill of discovery. If he supposed it to be amere bill of discovery to obtain the admission of facts to be used as a defence in the ejectment suit at law, and wished to delay the answer and discovery as long as possible, I can th.en account for his supposing that no advantage could be *352obtained of his client until he had been compelled to appear and make the required discovery by his answer. But the intention of the solicitor, however, to drive the adverse party to an attachment, for the purpose of compelling the defendant to obey the process of the court, forms but a lame excuse to such solicitor upon an application to the favor of the court, when he afterwards finds that his client, instead of being guilty of the intended contempt, has lost the opportunity of defending the suit. And I have great doubts whether the court ought to interfere in such a case, after the enrolment of a final decree, even to let in a meritorious defence; where there was no countervailing consideration to be urged against the equity of the relief sought by the defendant’s application.
The sworn answer which the defendant proposes to put in would probably have been a good defence to this suit if it had been interposed in time; according to the more modern decisions in relation to the power of this court to relieve against the consequences of a breach of a condition subsequent. In the case of Northcote v. Duke, (Ambl. Rep. 513,) Lord Northington said, in reference to this question, “ I take the rule to be that in all cases where a person has broken a condition, and forfeited a penalty, equity will relieve if there can be a compensation. I think the court may relieve where the tenant cuts down timber.” And he was certainly sustained in that opinion by the language of the court in some of the previous cases. But the decisions in the more recent English cases limit the active interference of the courts of equity, in behalf of the tenant, to those cases only where the act or omission by which the forfeiture was incurred was the result of accident or mistake, and where compensation can be made to the adverse party; or where the penalty or forfeiture, stipulated for in the lease, is in the nature of a mere security for the payment of money, &c. (Hill v. Barclay, 16 Ves. 402. 18 Id. 56, S. C. Reynolds v. Pilt, 19 Id. 134. White v. Warner, 2 Mer. 459. Bracebridge v. Buckley, 2 Price’s Rep. 200.)
These parties, however, stand in a very different situation at this time from that in which they were placed at the *353commencement of this suit. The defendant then was proceeding at law to enforce his legal right to a hard and onerous forfeiture, for a comparatively trifling injury. And he had the technical legal power to exact his pound of flesh, unless the complainant could induce this court, in the exercise of a legitimate authority, to lend its active aid to compel the defendant to relinquish the forfeiture, and to accept a compensation in damages in lieu thereof which would be only a fair equivalent for the actual damage sustained by the breach of the covenant. Now, by a proceeding on the part of the complainant which was perfectly regular, the technical legal rights of the parties are reversed. The complainant has obtained a decree by which the defendant is deprived of the power to enforce the onerous forfeiture, for any breach of the covenant which had occurred previous to the filing of the bill; but he is left at perfect liberty to recover a full compensation in damages, by an action of covenant. The defendant is also left in the full possession of his legal right, under the lease, to insist upon a forfeiture if there should be any future breach of this covenant. In this situation of the case the defendant applies to the equity and justice of this court, to lend him its aid in removing the technical bar which the decree has placed in his way,, and thereby to enable him again to insist upon the fatal penalty— a forfeiture of the complainant’s whole estate. In answer to this application on the part of the defendant, the counsel for the adverse party interposes the fixed and inflexible rule that a court of equity will ndt lend its active aid to enable a party to enforce a penalty or forfeiture, And as the defendant, after a final decree in favor of his adversary, is compelled to ask that as a matter of mere favor, which in a different stage of the suit he might have been permitted to insist upon as a matter of strict legal defence to the complainant’s bill, the court, acting upon the inflexible rule above stated, will not grant his application if the sole object of it is to enable him to enforce a forfeiture. This court acted upon that principle in the case of The Fulton Bank v. Beach, (1 Paige’s Rep. 429,) by refusing to interfere in favor of a defendant who had made a slip in setting up the *354defence of usury to the complainant’s bill, unless such defendant would consent to waive the forfeiture or penalty. And that decision was afterwards affirmed upon appeal by the court of dernier resort. (3 Wend. Rep. 573.)
The only object of the defendant in wishing to open the decree in this case is to enable him to enforce the forfeiture at law, if he succeeds in his defence to this suit; for the costs which he would have to pay to the adverse party, if he was let in to defend, including the costs of opposing this application, would be equal to the whole costs which he is now bound to pay under the decree. It would therefore be a useless expense to both parties, to permit a defence to be made in the present suit upon the terms of the defendant’s agreeing to waive the forfeiture and to pay such costs. Better justice will be done to both parties by denying this application altogether, without any costs to the complainant '; and by leaving the defendant to recover a compensation, for the few trees which have been cut, by an action at law upon the covenant in the lease. The application to open the de-. cree is therefore denied.